Tort Law - Negligence (Duty, breach, causation, defences)
N.B. always consider the time limits for tort claims - Limitation Act 1980:
- Normally, the limitation period is six years from when the cause of action arises
- Except:
- Defamation cases concerning the publication of defamatory statements - 1
yr
- Personal injury claims - within 3 yrs of the date of injury
- Children - the time period does not start to run until the child turns 18
[STEP 1] Introduce negligence claim
C v D - [INSERT TORT]
[INSERT C] can consider suing [INSERT D] in the tort of negligence for [INSERT C’s
HARM CAUSED BY D’S ACT].
Negligence is a breach by the defendant (D) of a legal duty of care owed to the claimant
(C) that results in actionable damage to C, unintended by D.
[IF FOLLOW UP] [INSERT C] can consider suing [INSERT D] in negligence (see
definition above) for [INSERT C’s HARM].
[STEP 2] Duty of care
Duty of care
Established duty situations:
[INSERT RELEVANT ESTABLISHED DUTY FROM BELOW LIST] is likely to be an
established duty situation (insert authority if there is one).
[IF ESTABLISHED DUTY PRESENT] [INSERT D] owes [INSERT C] a duty of care in
relation to [INSERT SCENARIO].
Examples:
- One road user to another (driver to other drivers;driver to passenger; driver to
pedestrian; cyclist to driver;cyclist to pedestrian…)
- Doctor - patient
- Teacher - pupil
- Tutor - tutee
, - Employer - employee (GO TO WS6)
- Manufacturer - consumer
- Adult / parent in loco parentis - child
- Advocate - client (Arthur J S Hall and Co. v Simmons)
- One road user - another road user (e.g. driver - pedestrian (London Passenger
Transport Board v Upson) , driver - cyclist, pedestrian - driver…)
- Driver - passenger (Nettleship v Weston)
- D to rescuer - where D’s actions create a dangerous situation so that it is
reasonably foreseeable that someone may attempt a rescue (Baker TE Hopkins
& Son Ltd).
- Fellow participants in sporting events (Condon v Basi)
- Contractors - those who could be foreseeably injured by their carelessness (AC
Billings v Riden), including trespassers (Buckland v Guildford Gas Light & Coke
Co)
- Includes all situations which were novel when considered in court, and so
satisfied the Caparo test:
- Kent v Griffiths [2000] - ambulance service failed to arrive in reasonable
time, liable for C’s harm (cardiac arrest during the delay)
- Phelps v Hillingdon LBC [2001] - psychologist - patient, failed diagnoses
- Vowles v Evans [2003] - referee to player
- Established that a duty of care does not exist for:
- Fire service to emergency caller (Capital & Counties v Hampshire County
Council).
- Ratio - lack of sufficiently proximate relationship between the fire
brigade and the emergency caller (which was the owner of the
building on fire)
Novel duty situations:
APPLY CAPARO, APART FROM 1) POLICE, 2) PUBLIC BODY / OMISSIONS. Go
straight to relevant sections for these (IF THERE’S NO ESTABLISHED DUTY or
IT’S UNCLEAR).
If not, [INSERT D] owes a duty to [INSERT C] in relation to [INSERT SCENARIO] if (as
per Caparo):
- It is reasonably foreseeable that the defendant’s actions will affect the claimant;
, - There sufficient proximity of relationship between the claimant and defendant;
and
- It is fair, just and reasonable to impose a duty.
Foreseeability
- Not foreseeable in Bourhill v Young
- Facts:
- C heard motorcycle-car collision, saw blood on road, claimed they
suffered shock and a miscarriage
- Held:
- D not liable - motorcyclist did not owe a duty of care to C as C was
not a reasonably foreseeable V of the Motorcyclist's negligence
Proximity of relationship
- A lack of proximity was the reason for C’s failed damages claim in Caparo -
relationship of proximity too distant between outside investors with no
shareholding and shareholders.
Fair, just and reasonable
Whether it is ‘fair, just and reasonable’ to impose a duty of care depends on policy
considerations.
[CHOOSE RELEVANT ONES FROM BELOW]
- ‘Floodgates’ argument
- This could be an argument against imposing a duty on the grounds that
allowing one case to succeed would open the floodgates to many similar
claims.
- Deterrence
- Imposition of a duty of care on a defendant may deter others in the same
situation from acting carelessly.
- Public benefit
- The courts may consider a decision’s benefit to the public (normally in
deterrence cases)
- Resources
- The courts will consider that when C succeeds against D, money passes
from one to another
- Courts consider the existence of insurance
N.B. always consider the time limits for tort claims - Limitation Act 1980:
- Normally, the limitation period is six years from when the cause of action arises
- Except:
- Defamation cases concerning the publication of defamatory statements - 1
yr
- Personal injury claims - within 3 yrs of the date of injury
- Children - the time period does not start to run until the child turns 18
[STEP 1] Introduce negligence claim
C v D - [INSERT TORT]
[INSERT C] can consider suing [INSERT D] in the tort of negligence for [INSERT C’s
HARM CAUSED BY D’S ACT].
Negligence is a breach by the defendant (D) of a legal duty of care owed to the claimant
(C) that results in actionable damage to C, unintended by D.
[IF FOLLOW UP] [INSERT C] can consider suing [INSERT D] in negligence (see
definition above) for [INSERT C’s HARM].
[STEP 2] Duty of care
Duty of care
Established duty situations:
[INSERT RELEVANT ESTABLISHED DUTY FROM BELOW LIST] is likely to be an
established duty situation (insert authority if there is one).
[IF ESTABLISHED DUTY PRESENT] [INSERT D] owes [INSERT C] a duty of care in
relation to [INSERT SCENARIO].
Examples:
- One road user to another (driver to other drivers;driver to passenger; driver to
pedestrian; cyclist to driver;cyclist to pedestrian…)
- Doctor - patient
- Teacher - pupil
- Tutor - tutee
, - Employer - employee (GO TO WS6)
- Manufacturer - consumer
- Adult / parent in loco parentis - child
- Advocate - client (Arthur J S Hall and Co. v Simmons)
- One road user - another road user (e.g. driver - pedestrian (London Passenger
Transport Board v Upson) , driver - cyclist, pedestrian - driver…)
- Driver - passenger (Nettleship v Weston)
- D to rescuer - where D’s actions create a dangerous situation so that it is
reasonably foreseeable that someone may attempt a rescue (Baker TE Hopkins
& Son Ltd).
- Fellow participants in sporting events (Condon v Basi)
- Contractors - those who could be foreseeably injured by their carelessness (AC
Billings v Riden), including trespassers (Buckland v Guildford Gas Light & Coke
Co)
- Includes all situations which were novel when considered in court, and so
satisfied the Caparo test:
- Kent v Griffiths [2000] - ambulance service failed to arrive in reasonable
time, liable for C’s harm (cardiac arrest during the delay)
- Phelps v Hillingdon LBC [2001] - psychologist - patient, failed diagnoses
- Vowles v Evans [2003] - referee to player
- Established that a duty of care does not exist for:
- Fire service to emergency caller (Capital & Counties v Hampshire County
Council).
- Ratio - lack of sufficiently proximate relationship between the fire
brigade and the emergency caller (which was the owner of the
building on fire)
Novel duty situations:
APPLY CAPARO, APART FROM 1) POLICE, 2) PUBLIC BODY / OMISSIONS. Go
straight to relevant sections for these (IF THERE’S NO ESTABLISHED DUTY or
IT’S UNCLEAR).
If not, [INSERT D] owes a duty to [INSERT C] in relation to [INSERT SCENARIO] if (as
per Caparo):
- It is reasonably foreseeable that the defendant’s actions will affect the claimant;
, - There sufficient proximity of relationship between the claimant and defendant;
and
- It is fair, just and reasonable to impose a duty.
Foreseeability
- Not foreseeable in Bourhill v Young
- Facts:
- C heard motorcycle-car collision, saw blood on road, claimed they
suffered shock and a miscarriage
- Held:
- D not liable - motorcyclist did not owe a duty of care to C as C was
not a reasonably foreseeable V of the Motorcyclist's negligence
Proximity of relationship
- A lack of proximity was the reason for C’s failed damages claim in Caparo -
relationship of proximity too distant between outside investors with no
shareholding and shareholders.
Fair, just and reasonable
Whether it is ‘fair, just and reasonable’ to impose a duty of care depends on policy
considerations.
[CHOOSE RELEVANT ONES FROM BELOW]
- ‘Floodgates’ argument
- This could be an argument against imposing a duty on the grounds that
allowing one case to succeed would open the floodgates to many similar
claims.
- Deterrence
- Imposition of a duty of care on a defendant may deter others in the same
situation from acting carelessly.
- Public benefit
- The courts may consider a decision’s benefit to the public (normally in
deterrence cases)
- Resources
- The courts will consider that when C succeeds against D, money passes
from one to another
- Courts consider the existence of insurance
